3rd ANNUAL LEGALWISE INTERNATIONAL FAMILY LAW CONFERENCE

SHANGHAI CHINA

17 – 20 SEPTEMBER 2014

CHIEF JUDGE PASCOE AO VCO FEDERAL CIRCUIT COURT OF AUSTRALIA

Parenting and Children’s Issues:

International Commercial Surrogacy and the risk of abuse

INTRODUCTION1

The trafficking of new-borns has evolved in sophistication with the ease

of travel and medical advances in technology. The Peter Truong case

graphically illustrates the terrible consequences for new-born babies of an

unregulated market where new-borns are no more than tradeable commodities.

In that case, a new-born boy was trafficked into the custody of two men, Peter

Truong and Mark Newton, who smuggled him into America and legally adopted

him. From the age of 21-months to 6 years, the boy was sexually abused and

groomed to perform sexual acts, not only on his two parents, but also on scores

of men they organised to meet around the world.

Further, the dire situation of Baby Gammy highlights the plight of surrogate

mothers and unwanted commissioned children. This scandal is accentuated by

the commissioning parent being a convicted paedophile, which potentially

exposes the child to danger. The most basic of background checks on the father

is glaringly absent.

1 I wish to acknowledge the contribution of my Legal Associate, Mr Benedict Porter, in preparing this paper.

Both cases reveal that the international commercial surrogacy (“ICS”) market

can, and is, being used by people ill-suited to be parents, driven by cash with no

oversight by any regulating body, and likely to expose vulnerable women and

children to terrible abuse.

Surrogacy is the new ‘front line’ in the trafficking and commodification

of women and new born children.

In strict terms, surrogacy technology is a blessing. Recent scientific and

technological advancements have played the proverbial stork and delivered

babies to the arms of otherwise childless parents.2 However, the blessing is

arrived at via the participation of more than the traditional two parties. And

often with large quantities of cash. It is here that the door for exploitation and

abuse is opened. Laws are needed to protect the weak and vulnerable in an

increasingly popular market, largely ignored by legislators, apart from grand

gestures of criminalisation that are then ignored by citizens and prosecutors

alike.

This paper will discuss the medical and legal vulnerability of the

surrogate mother and the new born child, the predators and traders who exploit

the gaping loopholes in the law, the role of the commissioning parents, and the

commodification of mostly poor women and new-borns.

WHAT IS SURROGACY?

Justice Benjamin of the Family Court of Australia helpfully provides a useful

legal definition of the practice:

“[A]n arrangement whereby a woman (‘the surrogate mother’) agrees to

conceive and bear a child, which she intends to transfer to another or

2 It is noted that the intended parent may be a sole mother or sole father or a couple, same-sex or otherwise. For the purposes of this paper, the plural ‘parents’ will be used, for convenience only.

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others (the ‘commissioning couple’ or ‘commissioning husband’ and

‘commissioning wife’) upon the child’s birth.”3

Justice Benjamin tactfully omitted the words “genetically related” and

could have omitted the word “conceive” as, oddly enough, neither are strictly

necessary for a baby to be born via surrogacy means. A surrogacy arrangement

can either be made on a commercial basis; that is, an arrangement where the

surrogate mother is paid a fee, above and beyond reimbursement for her

pregnancy-related expenses, to carry and birth the child; or altruistic surrogacy;

that is, an arrangement where the surrogate mother is reimbursed for her

pregnancy-related expenses only. The latter of these two arrangements is legal

in Australia, and indeed, most other international jurisdictions, with a few

notable exceptions such as China and Germany. The former is illegal in most

jurisdictions, with a few notable exceptions such as India and Ukraine

There are several different types of surrogacy;

• Gestational (or Total) surrogacy: A surrogate mother is inseminated with

an embryo created by in vitro fertilisation (“IVF”), using the egg and

sperm of the intended parents. The resulting child is genetically related to

both the intended parents, and genetically unrelated to the surrogate

mother.

• Gestational surrogacy and egg/sperm donation: A surrogate mother is

inseminated with an embryo created by IVF, using the intended father's

sperm and a donor egg or the intended mother’s egg and donor sperm.

The resulting child is genetically related to either the intended father or

mother and genetically unrelated to the surrogate mother.

• Gestational surrogacy and donor embryo: A surrogate mother is

inseminated with a donor embryo created by IVF; such embryos may be

3 Lowe & Barry and Anor [2011] FamCA 625, at [5].

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available when other people, undergoing IVF treatment, have embryos

left over, which they opt to donate or sell to others. The resulting child is

genetically unrelated to the intended parents and genetically unrelated to

the surrogate mother.

• Traditional surrogacy: A surrogate mother is naturally or artificially

inseminating with intended father's sperm via inter-uterine insemination

(“IUI”), IVF, or home insemination. The resulting child is genetically

related to intended father and genetically related to the surrogate mother.

• Traditional surrogacy and donor sperm: A surrogate mother is artificially

inseminated with donor sperm via IUI, IVF, or home insemination. The

resulting child is genetically unrelated to the intended parent(s) and

genetically related to the surrogate mother.

Having listed the options available to hopeful-parents, it is easy to see

how difficult it is to comprehensively and consistently legislate. Moreover, legal

definitions of “parent” differ greatly between jurisdictions. I should also point

out that surrogacy does not only cater to those who are infertile, or homosexual

men. ‘Political surrogacy’, especially in China, is seen as a viable way to

circumvent draconian government family planning policies; and ‘social

surrogacy’ serves the fashion conscious and lazy who want a child but not the

‘inconvenience’ of child birth.

THE ISSUES

Desperate desire to have a child

Many would-be parents, who can offer a child a good life but cannot

themselves conceive, experience an aching desire for a child to nurture and care

for. The outright prohibition on commercial surrogacy in Australia has led large

numbers of Australians to enter into surrogacy contracts abroad. Jurisdictions,

such as India, Ukraine, and the US states of Florida and California, actively

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permit commercial surrogacy, leaving such arrangements to be determined by

the market. The market determines the terms of the contact, 4 from the fee for

the surrogate mother to the behaviours that she is to favour or avoid for the

duration of her pregnancy,5 As Justice Ryan recently commented in the case of

Mason & Mason 6(“Mason”), this unregulated market creates a ‘troubling’

environment for vulnerable women who have little bargaining power.

The unregulated market creates an unwholesome race to the bottom;

commissioning parents may engage in “rampant forum shopping…seeking the

best surrogacy prices and conditions.”7 In 2012 in India, the reproductive

tourism industry was worth an estimated US$500 million,8 with over 600

surrogacy treatment clinics assisting 60,000 commissioning parents a year.9 One

participant of this unbridled trade in procreation described the process as “like

going to the supermarket to pick up your baby.”10 Effectively, and at best, the

cost involved in ICS – the expense of paying the fees to the agency, which

includes the fee to the surrogate mother, and the airfares – is the only factor

directly regulating the ICS market.

Good parents?

A looming issue in the debate surrounding surrogacy is that, in an

unregulated market, there are no checks on the commissioning parents. The

Peter Truong case shows that background checks will not always be successful,

as Truong and Newton appeared to be honest parents.

4 Margret Ryznar, ‘International Commercial Surrogacy and Its Parties’ (2010) 43 John Marshall Law Review 1009, 1016. 5 Frank Langfitt, “Made in the USA: Childless Chinese Turn to American Surrogates.” NPR News Agency. 21 April 2014 6 [2013] FamCA 424. 7 Margaret Ryznar, Op Cit. 1011. 8 Anil Malhotra and Ranjit Malhotra, “All Aboard for the Fertility Express” (2012) 38 Commonwealth Law Bulletin 31, at 31 9 Neeta Lal, Risks flagged in India’s fertility tourism (1 August 2012) Asia Times Online www.atimes.com/atimes/South_Asia/NH01Df01 10 Heath Aston, ‘It was like going to a supermarket to pick up your baby’, Sydney Morning Herald, 2 September 2012, 16.

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However, a simple background check on the father involved in the recent Baby

Gammy incident would have shown his criminal convictions for child sexual

abuse.

The Child Exchange Network in the US clearly illustrates exactly how easy and

how toxic conditions can be for children who are treated as commodities. The

best interests of the child demand that being desperate or affluent is not seen as

equating with being a good parent.

Need to protect the human rights of the surrogate mother, the surrogate

child, and the commissioning parents

The difficulty in discussing the issue of surrogacy is reconciling each of

the parties’ roles in the arrangement. Each is critical and should be equal,

however this is not the reality. As such, there is a real risk that human rights

may be ignored for the sake of completion of the contract.

The surrogate mother must endure the physical trauma of pregnancy and

birth, and it is she who must endure the psychological pain of surrendering the

child after its delivery. Moreover, in terms of many surrogacy contracts, the

surrogate mother is effectively renting out her womb, and by doing so,

relinquishing her rights to autonomy over her body; on one view, this is a type

of uterinal indentured slavery. The issue of consent is important as proper

informed consent differ across jurisdictions and financial hardship may compel

a surrogate mother to ‘consent’ under duress.

The child’s rights are severely compromised in an ICS environment as

the new-born has no way of being able to defend itself. Moreover, the presence

of a contract and payment for services rendered, reduces a new born child to the

status of tradable merchandise. The varying definitions of ‘parent’ across

jurisdictions, the ambiguity of genetic heritage, and very real possibility of

trafficking all expose the new-born child to serious human rights violations,

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even in circumstances where all parties have good intent and are in agreement.

The rights of the child are most commonly protected by its parents, however in

cases where parentage is ambiguous or disputed, the child is exposed to being

stateless or at least genetically bewildered.

Finally, the commissioning parents are either seen as saints or devils as

their role is either to highlight the blessings of having a child to love, nurture,

and protect as a result of surrogacy, or to exploit women and children. Their

rights though need to be addressed. A couple or individual has the right to

“determine freely and responsibly the number and spacing of their children.”11

This is, of course, not to be read as encouraging an infertile individual or couple

to have a child in circumstances that ignore or violate the rights of another. One

must question and scrutinise the intentions and parenting abilities of those who

commission a child especially when they do so in circumstances of which they

know are illegal or exploitative, and violate the rights of others

Australian lawyers who facilitate such dealings are particularly

reprehensible. They expose their clients to damaging consequences, including

the prospect of prosecution, not being able to take custody of the child, and

being left in legal ‘limbo’. It is difficult to see how this is consistent with the

lawyer’s role as an Officer of the Court, and seems to be driven purely by a

desire to make money. An impression reinforced by the cases seen in the Courts

to date.

THE LEGAL POSITION IN AUSTRALIA

One would think that strict laws controlling visa entry into any country,

boosted by laws in relation to citizenship, and the ensuing difficulty of getting a

child without papers into the commissioning parents’ home country would be

disincentive enough to prevent the ICS trade from flourishing. This, however, is 11 Declaration on Social Progress and Development, United Nations General Assembly resolution 2542 (XXIV), art.4

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to underestimate both the desperation of the commissioning parents and the

legal disconnect in Australia. Once a child is in Australia, the Courts are

presented with a legal and ethical conundrum.

Best Interests of the Child

For all Australian States and the Australian Capital Territory, commercial

surrogacy arrangements are illegal.12 However, the Family Law Courts are

governed by the Family Law Act 1975 (Cth) which has the overriding purpose

of acting in the “best interests of the child.”13 This leaves the Courts in a

difficult situation where the birth mother is said to have relinquished her rights

and responsibilities as the parent of the child, the commissioning parents may

have broken the law by entering into an ICS agreement, and have brought the

child back to Australia where the child’s status is uncertain. In such

circumstances, it is almost impossible14 for the Courts to determine that it is not

in that child’s best interests to remain with the commissioning parents even if

they have broken the law.15 As Justice Ryan commented in Ellison &

Karnchanit;

“It’s probably too late to ask whether – or to inquire into the legality of

the arrangements that had been made. The Court really needs to take

children as it finds them.”16

12 Queensland, New South Wales, and the Australian Capital Territory regard the illegality as criminal and apply the law to its’ inhabitants extraterritorially. See: Surrogacy Act 2010 (Qld), s 56; Surrogacy Act 2010 (NSW), s 8; Parentage Act 2004 (ACT), s 41; Assisted Reproductive Treatment Act 2008 (Vic), s 44; Surrogacy Act 2012 (Tas), s 38; Family Relationships Act 1975 (SA), s 10H; Surrogacy Act 2008 (WA), s 8. The Northern Territory has no legislation relating to surrogacy although the ‘National Health and Medical Research Council Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2007)’ provide that it is ethically unacceptable to undertake or facilitate pregnancy for commercial purposes (at [13.1]). 13 Family Law Act 1975 (Cth) s.60CA 14 Two matters have been referred to the Queensland Director of Public Prosecution for consideration of criminal prosecution: Dudley v Chedi [2011] FamCA 502 and Findlay v Punyawong (2011) 266 FLR 236; [2011] FamCA 503. Neither matter was pursued by the DPP. 15 Philippa Trowse, “Surrogacy – competing interests or a tangled web?” (2013) 22 Qld Lawyer 199, at 199 16 [2012] FamCA 602 at [87]

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Justice Ryan continued, quoting Justice Hedley of the High Court of England

and Wales in the matter of X and Y (Foreign Surrogacy);

“The difficulty is that it is almost impossible to imagine a set of

circumstances in which by the time the case comes to court, the welfare of

any child (particularly a foreign child) would not be gravely

compromised (at the very least) by a refusal to make an order...If public

policy is truly to be upheld, it would need to be enforced at a much

earlier stage than the final hearing...The point of admission to this

country is in some ways the final opportunity in reality to prevent the

effective implementation of a commercial surrogacy agreement.”17

ICS arrangements raise many concerns about the rights and interests of

the children involved. From the beginning, the child’s future is often uncertain.

Prior to birth, the child’s status remains the subject of legal debate, and

vulnerable to usurpation of others.18 Post-birth, questions surrounding the

child’s parentage and nationality remain.

Parentage vs Parenting Orders

In Australia, there are no laws that recognise parentage under ICS

arrangements. Therefore commissioning parents are left to seek parenting

orders. It is important to distinguish ‘parentage’ from ‘parenting’ orders.

Parentage orders are orders of the Court that declare who are the legal parents of

the child, often resulting in the issuance or reissuance of an amended birth

17 X and Y (Foreign Surrogacy) [2008] EWHC 3030 at [24]; [2009] 1 F.L.R. 743 18 For the discussion of when does a child’s legal personality begin, see Claire Achmad, ‘Contextualising a 21st century challenge: Part One Understanding international commercial surrogacy and the parties whose rights and interests are at stake in the public international law context’ (2012) New Zealand Family Law Journal 190, 195.

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certificate.19 The Australian government will only bestow citizenship on a

surrogate child if that child has parentage orders issued by a State or Territory20.

Parenting orders are orders of the Family Court or the Federal Circuit Court of

Australia that determine who cares for the child. Apart from the conflicting

policy goals, on which I will elaborate, parenting orders fall well short of a

commissioning parent’s ultimate goal to become parents. The orders merely

designate parental responsibility.

This area is fraught with conflict and tension between two significant

policy goals. On the one hand there is the Federal policy goal of protecting the

best interests of the child. However, on the other hand, there is the State and

Territory policy goal of protecting women and children from ‘commodification’

and exploitation. From the desperate parents’ point of view, as Justice Hedley

clearly identifies above, their final hurdle is entry into their home country. Once

the entry visa is secure, then at least parenting orders are almost a fait accompli.

The acquisition of the entry visa can often be done via fraudulent means, as

seen in the Peter Truong case below. Legal identity based on fraud, however

temporary, again exposes the child to danger and pushes ICS further into

unregulated and unknown territory.

It is worrying that some intended parents, desperate for a child to the

point of willingness to break the law, may seek to hide the child so as to avoid

potential prosecution.21 This conundrum is best illustrated by the number of

confirmed commercial surrogacy births commissioned by Australians, estimated

19 See, Parentage Act 2004 (ACT), s 24(c); Surrogacy Act 2010 (NSW), s 31(1); Surrogacy Act 2010 (Qld), s 20; Family Relationships Act 1975 (SA), s 10HB(2)(a); Status of Children Act 1974 (Vic), s 20(1)(a); Surrogacy Act 2008 (WA), s 12; and Surrogacy Act 2012 (Tas), ss.14 and 15. 20 Australian Citizenship Act (2009) (Cth), s.8. 21 Jenni Millbank, Submission to ‘Family Law Council: Report on Parentage and the Family Law Act’ December 2013, at 5; Surrogacy Australia, Submission to ‘Family Law Council: Report on Parentage and the Family Law Act’ December 2013, at 3; Et al.

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at several hundred per year,22 set against the few Parentage Order applications

filed in the Courts.23 Questions and uncertainties abound: What is the status of

these children? Are they with appropriate adults? What is the legal relationship

between the child and those who are raising him or her?

The disharmony between State and Federal objectives does nothing to

protect overseas surrogate mothers, or indeed the children to whom they give

birth. Despite the disharmony and evident failure of prohibitive commercial

surrogacy laws, there seems little legislative interest in remedying the situation.

It is noted that to date only one MP has questioned whether it is in the best

interests of the child to have their parents incarcerated as a result of the

circumstances of their conception.24

The recent publication of the Family Law Council’s Report on Parentage and

the Family Law Act, whilst in my view manifestly inadequate, is at least an

indication that reform proposals are being considered.

It is surely appropriate to ask; why have criminal sanctions against a

practice if the laws are not intended to be enforced? The Rule of Law is brought

into disrepute. Federal Judges are left to make discretionary orders, in violation

of State laws, so as to protect the best interests of a vulnerable child.

Nationality

Often, the commissioning parents’ names may not be recorded on the

child’s birth certificate, rather listing the surrogate mother’s name and the father

as ‘unknown’. This can create difficulties in obtaining passports and travel

documents for the child. If parentage and nationality cannot be established there

22 Family Law Council, ‘Report on Parentage and the Family Law Act’ December 2013, at 99 23 ibid 24 Jenni Millbank, ‘From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of “New” Surrogacy in Australia’ (2012) 21(1) Griffith Law Review 101, 126

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is the potential that the child may be left “marooned, stateless and parentless.”25

This is exactly the case for the twins ‘of’ Norwegian citizen, Ms Volden, who

commissioned a child via a donor embryo gestational surrogacy arrangement.

The Indian Government does not consider the Indian surrogate mother the

parent of the twins, rather the commissioning parent Ms Volden, and so will not

recognise the twins as Indian. However, Norway does not recognise Ms Volden

as the mother of the twins, as they were born through an ICS arrangement and

are not genetically related to her.26 Such a situation is in direct conflict with the

child’s right to acquire nationality from birth, guaranteed under Art.7(1) of the

United Nations Convention on the Rights of the Child.27 However neither

country will issue citizenship.

International Law offers little protection to vulnerable surrogate mothers

and their children. The Permanent Bureau to the Hague Conference on Private

International Law has drawn attention to the inability of current anti-human

trafficking conventions to deal with ICS.28 ICS therefore remains in a situation

similar to that of international adoption prior to the 1993 Hague Adoption

Convention.29

However, International Law is developing. In June this year, the

European Court of Human Rights effectively overturned a ruling of the French

Court of Cassation. The European Court declared that it was contrary to the

child’s human right to Family Life for the French government, a party to the

European Convention on Human Rights,30 to deny a surrogate child French

25 Re X & Y (Foreign Surrogacy) [2008] EWHC 3030 at [10]; [2009] 1 F.L.R. 738 26 See generally: Sumitra Deb Roy, “Stateless twins live in limbo” The Times of India, 2 February 2011) 27 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). 28 Hague Conference on Private International Law, ‘Private International Law Issues Surrounding the Status of Children, Including Issues Arising from International Surrogacy Arrangements, Document No 11 of March 2011 for the attention of the Council of April 2011 on General Affairs and Policy of the Conference’, p21-22. 29 The Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993) 30 Convention for the Protection of Human Right and Fundamental Freedoms, Rome, 4 November 1950. See Article 8 - Right to Respect for Private and Family Life

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citizenship if the surrogate child shared a genetic relationship with the

biological parent-citizen, even though any form of surrogacy is illegal in

France.31 The European Court concluded that such a denial of citizenship

undermined the child’s identity within French society and, despite the child’s

parent holding French citizenship, the child would face uncertainty of

nationality, which would then have negative repercussions for the child’s self-

identity.

The recent publication of the Family Law Council’s Report on Parentage

and the Family Law Act recognises the legal problems encountered by a child

born through ICS when brought back to Australia. The Council recommended a

mechanism for Judges to follow so as to more easily transfer parentage. Whilst

this recommendation may provide relief for children already in Australia with

respect to their ‘parent’, the recommendation seems to tacitly encourage

Australians to participate in ICS, which seems extraordinary and ignores major

issues of human rights protection. It is hard to see the Family Law Council’s

recommendations as other than a disappointing avoidance of the real issues in

ICS.

EXPLOITATION

In 2009, the Standing Council of Attorneys-General raised concerns

about the practice of unregulated commercial surrogacy, noting it “risks the

exploitation of poor families for the benefit of rich ones.”32 This risk becomes

especially relevant where wealthier commissioning families rely on

‘middlemen’ to make the necessary arrangements. The language is, however,

fraught with misnomers. The agency clinic is often not a middleman, but the

contracting party. The commissioning parents contract with the agency to

31 Mennesson v France; Labasse v France ECHR 185 (2014). The decision may be appealed by 26 September 2014. 32 Standing Committee of Attorneys-General Joint Working Group, A proposal for a National Model to Harmonise Regulation of Surrogacy (2009), 4-5.

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produce a baby via surrogacy. The commissioning parents supply the required

genetic material to the agency, indeed the agency may source some or all of the

genetic material for the procedure themselves. The clinic then implants the

embryo into the surrogate mother, whom it has sourced, and with whom it has a

service contract. As such, privacy of contract precludes any relationship

between the commissioning parents and the surrogate mother. In fact, the terms

‘surrogacy agreement’ or ‘surrogacy contract’ are a misnomers; in very few

jurisdictions are surrogacy contracts actually enforceable at law. The gaps are

widened by different laws governing ICS in in different jurisdictions.

As the facilitators connecting the childless parents with the often

desperately poor surrogate mother, the agencies make a healthy profit from ICS.

Agencies provide the fertilisation facility and procedure for the parties, supply

food, accommodation, and nursing for the surrogate mother, handle the receipt

and payments of monies, and diplomatic papers and ultimate delivery of the

baby for the commissioning parents.

The unethical practices of many surrogate agents, including lawyers,

driven by the desire for money, include a lack of informed consent, a distortion

of the risks faced by the surrogate mother and baby, inflation of success rates,

and the prescription of unnecessary treatments.33 The control over the surrogacy

mother’s body can have dire consequences for the birth mother, especially

where surrogacy agencies insist on unnecessary caesarean births to comply with

birthdate requests and return-travel itineraries.

The Plight of the Surrogate Mother

In surrogacy arrangements, the person most at risk is the surrogate

mother. Pregnancy health concerns aside, her vulnerability and dependence on

the other players in the arrangement, devalue her humanity as a “object of

33 Ibid.

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reproductive exchange.”34 Flimsy contractual rights, lack of education and/or

properly informed consent, and often dire poverty as the driving force behind

participation in the arrangement means that she is most likely to be exploited in

the business deal. Ultimately, she is in a position of others having power over

her body.

It is not uncommon for commissioning parents never to meet the birth

mother.35 This additional degree of detachment removes another potential

protection for the surrogate mother. The commissioning parents generally do

not want to exploit the surrogate mother; they want a fair deal – money for

labour. But, as they generally do not want the surrogate mother to be a part of

their lives beyond the birthing-service, commissioning parents often remain at

arm’s-length so as to avoid “messy personal involvement”.36 This ‘messy

personal involvement’ is what deters many European governments from

condoning any form of surrogacy; “it is wrongheaded to create children whose

relationship with the woman who provided the egg or carried them will be

severed.”37

Moreover, clinics often limit the surrogate mother’s contact with their

own families during the course of the pregnancy. This isolates the surrogate

mother, cutting her off from any emotional and family support, with the

intention of increasing her docility and compliance.

A further consideration is that of the social stigmatisation that many

surrogate mothers experience as reaction to their work, which is often classed as

34 Mark Henaghan, “International Surrogacy Trends: How Family Law is Coping” (2013) Australian Journal of Adoption, Vol 7, No.3, at [5.0] 35 Achmad, op cit, 193. 36 Pamela Laufer-Ukeles, ‘Mothering for Money: Regulating Commercial Intimacy’ (2013) 88 Indiana Law Journal 1223, 1270. 37 Tamar Lewin, Coming to US for baby, and womb to carry it. Foreign couples heading to America for surrogate pregnancies. New York Times. 5 July 2014. www.nytimes.com/2014/07/06/us/foreign-couples-heading-to-america-for-surrogate-pregnancies

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dirty or immoral. This is especially so in India.38 There are also no guarantees

that the surrogate mother will even be adequately paid. All too often, the money

is kept by the agency, or by a husband or other family members.39

Such detachment dehumanises the surrogate mother; she is a living

incubator, imprisoned and controlled in an intentionally commercialised setting.

This detachment from family, combined with the cultural and geographical

distance of the commissioning parents, results in the isolated surrogate mother

relying on, and thus vulnerable to, the unscrupulous and covert practices of

some agencies and “provides a ground ripe for unethical practices.”40

Caesarean births are promoted by agency clinics as they can control the

birthing schedule and inflate prices for ‘guaranteed, on-time delivery!’ and not

necessarily nor substantially passed on to the surrogate mother who undergoes

the surgery. Indeed, little thought or information is given to the birth mother in

some clinics about the potential consequences of such procedures.41 Nor is

support always offered to the surrogate mother after the birth. In one tragic

Indian case, reported in 2010, a surrogate mother was thrown out of a surrogacy

clinic immediately after a successful caesarean birth. This mother was suffering

from post-birth complications and, as the clinic had no further contractual

obligations towards her, was instructed to find care at a public hospital. The

surrogate mother died before her husband could transport her to the nearest

public hospital.42

38 Claire Achmad, ‘Contextualising a 21st century challenge: Part Two Public international law human rights: Why are the rights and interests of women and children at stake in international commercial surrogacy arrangements?’ (2012) New Zealand Family Law Journal 206, 212. 39 Ibid. 40 Usha Smerdon, ‘Crossing Bodies, Crossing Boarders: International Surrogacy between the United States and India’ (2008) 39 Cumberland Law Review 15, 29. 41 Smerdon, op cit, 29. 42 Scott Carney, Inside India’s Rent-a-Womb Business (10 March 2010) Mother Jones <http://www.motherjones.com/politics/2010/02/surrogacy-tourism-india-nayna-patel>.

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It is a common term in many surrogacy contracts entered into in India

that where the surrogate is diagnosed with a life-threatening illness during

pregnancy she is to be:

“Sustained with life support equipment to protect the foetus viability and

ensure a healthy birth on the genetic parents’ behalf.” 43

This focus on protecting the foetus and not the mother reduces devalues her

humanity; the subject of the contract (the baby) is to be protected so as to carry

the contract through to completion, however adverse to the host (the surrogate

mother).

Consent

The issue of consent is important, and indicates the surrogate mother’s

voluntary willingness to participate in the arrangement, and critically not to be

the legal parent of the child. However, there are many questions as to the

freedom of the surrogate mother when she gives consent. Academics argue that

consent cannot be freely given when made in circumstances of financial

desperation.44 Moreover, others argue that first-time mothers cannot give actual

consent as they do not have a full understanding of what they are consenting to.

Some jurisdictions that allow altruistic surrogacy limit surrogacy participation

to only those who have previously carried and given birth.45

In Mason, as mentioned above, an illiterate mother signed an agreement

purporting to limit her ability to manage her health during the pregnancy and to

make decisions about the delivery of the baby. 46 Effectively, her body was at

the behest of the commissioning couple and enforced by the controlling agency. 43 Pamela Laufer-Ukeles, ‘Mothering for Money: Regulating Commercial Intimacy’ (2013) 88 Indiana Law Journal 1223, 1268. 44 Mark Henaghan, “International Surrogacy Trends: How Family Law is Coping” (2013) Australian Journal of Adoption, Vol 7, No.3, at [5.0] 45 Merryn Ekberg, ‘Ethical legal and social issues to consider when designing a surrogacy law’ (2014) 21 Journal of Medical and Law 728, 731-2 46 Mason & Mason [2013] FamCA 424, [4].

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In such arrangements, the surrogate mother’s body is effectively rented out, and

the baby, when born, is a commodity. The notion of informed consent in such a

case is laughable.

Lack of evidence of consent poses a problem for judges considering

parentage orders where evidence of consent is not available, as discussed by

Justice Baker of the High Court of England and Wales, in the matter of D, L

(Minors)47:

“[24] A surrogate mother is not merely a cipher. She plays the most

important role in bringing the child into the world. She is a ‘natural

parent' of the child… [25] The act of carrying and giving birth to a baby

establishes a relationship with the child which is one of the most

important relationships in life. It is, therefore, not surprising that some

surrogate mothers find it impossible to part with their babies and give

consent to the parental order. That is why the law requires that a period

of six weeks must elapse before a valid consent to a parental order can be

given.”48

Justice Baker eventually made parentage orders stating that the applicants had

made serious and not “half-hearted [n]or token attempts to find the surrogate

[mother].”49 The Indian clinic refused to assist in locating her to the point of

being hostile and the only point of contact listed for the surrogate mother was a

false address.

Such obvious lack of care for the surrogate mother and her post-birth well-fare

is truly alarming.

47 D, L (Minors) (Surrogacy) and in the Matter of Human Fertilisation and Embryology Act 2008 [2012] EWHC 2631 (Fam); [2013] 2 FLR 275 48 Ibid, at [24]-[25] ; [2013] 2 FLR 285 49 Ibid, at [28] ; [2013] 2 FLR 286

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Reproductive Trafficking

Surrogacy agency practices can resemble those used by human or sex

traffickers. Agents looking for potential surrogate mothers prey on

unsophisticated and often illiterate rural women, who they then compel to move

to major cities away from their family. One surrogate mother recalled her

recruitment process in the following terms; “Madam told me I should become a

surrogate and if I do, all my worries will go away.” This woman was also told

to “think of the pregnancy as ‘someone’s child comes to stay at your place for

nine months.’”50

In one critic’s view, this process should more accurately be labelled

‘reproductive trafficking’ because:

“[I]t creates a national and international traffic in women in which

women become moveable property, objects of reproductive exchange, and

brokered by go-betweens mainly serving the buyer.”51

The notorious ‘Baby 101’ case, where 13 Vietnamese women were trafficked to

Thailand, imprisoned, and raped so as to be impregnated, the children being

sold to mainly Taiwanese buyers, is a telling example of how such a view is by

no means fanciful or exaggerated.52

Where women are not physically trafficked, the marginalised nature of

most surrogate mothers raises serious questions about whether socio-economic

or familial coercion was a causative factor in the final decision to become a

surrogate mother. Putting it bluntly:

50 Sam Dolnick, Pregnancy Becomes Latest Job Outsourced to India (30 December 2007) USA Today <http://www.usatoday.com/news/health/2007-12-30-surrogacy_N.htm>. 51 Janice G Raymond, Reproduction, Population, Technology and Rights (1998) ISIS International <http://www.isiswomen.org/index.php?option=com_content&view=article&id=534:reproduction-population-technology-and-rights&catid=134>. 52 See AFP, Women freed from ‘inhuman’ baby ring (25 February 2011); ABC News: <http://www.abc.net.au/news/2011-02-25/women-freed-from-inhuman-baby-ring/1956588>.

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“The choice between 9 months of being well-fed and medically monitored

as a surrogate (even if behind lock and key) is far superior to being

forced into prostitution internally or trafficked for sex in other

nations…where women face brutal conditions of sex work/slavery.”53

Finally, there remains the question of what rights a surrogate mother has

if she decides to keep the baby to whom she gave birth. It is unlikely that a

surrogate mother would be able to retain the baby due to her unprotected rights

and vulnerability to the agency. However it is not unheard of for the surrogate

mother to abscond with a surrogate baby.54 The illiterate and poor surrogate

mothers used in ICS arrangements in developing countries are far removed from

those in the US who are comparatively educated, have access to the law, and

may not live in poverty; differences clearly shown in the famous Baby M case.

55 This vulnerability places the surrogate mother at considerable risk of

psychological harm resulting from the loss of the baby,56 especially in

Traditional surrogacy, where the mother is genetically related and more likely to

form a closer bond to the child.57 In a chilling example of what is described as

‘counselling’ but can only be seen as brainwashing, one client liaison officer for

a Chinese surrogacy clinic stated; “[We] tell them every day that the baby in

their stomach isn’t your baby…It is emotional comfort…”58

These are several examples from the plethora of reasons why commercial

surrogacy is banned in Australia and many other jurisdictions. It is morally

reprehensible for developed countries to be involved in exploiting the

53 Karen Smith Rotabi and Nicole Footen Bromfield, “The Decline in Intercountry Adoption and New Practice of Global Surrogacy: Global Exploitation and Human Rights Concerns” (2012) 27 Affilia 129, 136. 54 Ian Johnson and Cao LI, “China Experiences a Booking Underground Market in Child Surrogacy.” New York Times. 3 August 2014 55 In re Baby M, 537 A 2d 1227 (NJ 1988). 56 Mark Henaghan, “International Surrogacy Trends: How Family Law is Coping” (2013) Australian Journal of Adoption, Vol 7, No.3, at [5.0] 57 Pip Trowse, ‘Surrogacy: Is it harder to relinquish genes?’ (2011) 18 Journal of Law and Medicine 614, 617-18. 58 Ian Johnson and Cao Li, “China Experiences a Booming Underground Market in Child Surrogacy.” New York Times, 3 August 2014.

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vulnerability of women in developing countries, whilst banning the practise at

home. For reasons that will be discussed below, developed countries with an

effective Rule of Law, should make ICS illegal but make domestic commercial

surrogacy legal to allow proper regulation, supervision, and protection for all

parties involved.

NASTY REALITIES

I wish to discuss a few actual cases to which I have previously alluded, to

illustrate the vulnerability of the surrogate mother and child and how

devastating failure to regulate ICS will be.

First, I refer to the insidious set of circumstances of the Peter Truong and

Mark Newton case. These two, now incarcerated, ‘fathers’ purchased a new-

born baby from a mother in Russia for US$8,000, after several failed attempts at

ICS arrangements. With falsified documents, the trio entered America and the

fathers legally adopted the child. The child was then regularly sexually abused

from the age of 21-months to 6 years old. As he grew, he was instructed and

groomed and abused and video-taped for posterity, not only by his fathers, but

by those to whom he was offered around the world organised via online child

abuse forums. The abuse only stopped when police agencies, mostly by luck

and coincidence, arrested the fathers.

The Pennsylvanian case of Huddleston59 also highlights this risk. There, a

young man commissioned a surrogate child as the sole intended parent. The

surrogate infant died, six weeks after being delivered to the commissioning

father, as a result of severe physical abuse.60

59 Huddleston v Infertility Center of America, Inc., 700 A.2d 453 (Pa. Super. Ct. 1997). 60 Hague Conference on Private International Law, op cit, at 19.

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The very recent Baby Gammy situation61 offers another illustration of

vulnerability and potential for abuse. This involved an Australian convicted

paedophile abandoning the twin of a commissioned child in Thailand, born with

Down’s Syndrome, and retaining his healthy twin sister. The surrogate mother

was forced to lie to the Australian Embassy that the birth was not the result of

an ICS agreement,62 resulting in the issuing of a genuine (but based on

inaccurate information) visa. Such circumstances sound alarm bells about the

future safety of the baby daughter in the commissioning father’s care and for the

disabled baby son left in the poor surrogate mother’s care. A complete lack of

background checks on the commissioning father’s criminal past allowed such

arrangements to proceed unimpeded. Furthermore, the surrogate mother, who

entered into the arrangement for financial reasons, is now left to care for the

disabled child. There are no laws protecting her position, nor that of the child.

Moreover, under Thai law, the birth mother is deemed the child’s legal parent.

In Ukraine, however, the genetic parents are deemed the child’s legal parents, as

discussed in Re X & Y (Foreign Surrogacy) above. If Baby Gammy’s situation

had arisen in Ukraine, then the baby would have no ‘parent’ in the country

where he was located.

Finally, the US Child Exchange Network, uncovered by Reuters in 2013,

offers another sinister situation ripe for abuse if applied to a commercial

surrogacy situation. The Child Exchange Network involved online notice boards

for parents who wanted to either ‘off-load’ a problem child or ‘pick-up’ a child

for whom to care. The parties would typically meet at an arranged cafe or

carpark, sign over power of attorney of the child to the stranger, hand over the

child, and leave. Should the parents involved with Baby Gammy have returned

61 Widely reported in Fairfax and other Australian media outlets, commencing 1 August 2014. Lindsay Murdoch, “Australian couple leaves Down’s Syndrome Baby with Thai Surrogate” Sydney Morning Herald, 1 August 2014. 62 According to Joan Smith, “The Truth Behind Thai Fertility Tourism” Bangkok Post, 5 August 2014, at 1

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to Australia with both children, and wanted to ‘off-load’ the handicapped

Gammy via a similar network, then who is to say what type of person will

receive him. Indeed, Baby Gammy may be exposed to the same potential ‘off-

load’ if his Thai surrogate mother were unable or unwilling to care for him.

A WAY FORWARD?

In the past six years there has been a 300 per cent rise in the number of

Australians entering into ICS arrangements in India alone. 63 Obviously,

Australians are not deterred from ICS despite the practice being illegal in

Australia. With Australian domestic laws failing to deter desperate parents, and

international laws unable to deal with the newly arisen practice, money is the

only gatekeeper to ICS.

In the interests of protecting woman and children it is necessary to

reconsider Australia’s present position on commercial surrogacy, not only for

its own citizens but so as to contribute to the international community’s struggle

with ICS and related child abuse and human trafficking.

Firstly, the need for a uniform approach from State and Federal

governments is central for Australia to effectively move towards any proposed

model of commercial surrogacy regulation. Academics have suggested that to

avoid a black market trade in commercial surrogacy emerging further, Australia

should consider legalising and regulating commercial surrogacy domestically.64

This model would be open only to Australian citizens, to prevent ICS tourism,

and so commissioning parents, agency clinics, surrogate mothers, and children

can be adequately treated, observed, regulated, and prosecuted if necessary.

63 Amy Corderoy, ‘More parents defy law with overseas surrogacy’ The Sydney Morning Herald (Sydney), 14 September 2013, at 3. 64 Merryn Ekberg, ‘Ethical legal and social issues to consider when designing a surrogacy law’ (2014) 21 Journal of Medical and Law 728, at 729.

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Such arrangements within Australia should ensure that surrogate mothers

and the children receive adequate medical care and legal protection if either

suffers any physical, emotional, legal, or financial harm. In addition, strict rules

around record keeping and when a child is to be informed of his or her genetic

origins could also be enacted to protect the rights of the child.65

Regulation should also ensure that surrogate mothers are properly

informed prior to entering the agreement and thus capable of giving fully

informed consent. In addition to such a requirement, it may also be advisable

for Australia to consider prescribing a compulsory education course for

surrogate mothers. The exploitative elements that exist in the economics of

commercial surrogacy, as suffered by the women who presently participate in

commercial surrogacy arrangements in developing countries, will need to be

closely monitored so as not to “create a situation in which [the industry]

coerce[s] people economically.”66

Any amendment to the Family Law Act 1975 (Cth) to encompass

surrogacy arrangements should include a provision dealing with the situation

where a surrogate mother changes her mind, either to terminate the pregnancy

or to not give up the child. It is recommended that such a provision provide that

the commissioning parents not be able to sue the birth mother in the event she

declines to relinquish the care of the child. In effect, this would mean that the

contract between the birth mother and commissioning parents would not be

enforceable.67 This is an ethical question ultimately up to the legislature to

decide.

65 See e.g.: Human Fertilisation and Embryology Act 1990 (UK) and Human Fertilisation and Embryology Act (Disclosure of Donor Information) Regulations 2004 (UK). 66 Leslie Cannold, as quoted in “Call to Reform Surrogacy Laws” by Esther Han, Sydney Morning Herald, 9 December 2012 67 As is the case in New Zealand. The Human Assisted Reproductive Technology Act (2004) (NZ) allows altruistic surrogacy but not commercial surrogacy, however s.14 states that any surrogacy contract is unenforceable.

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Provision should also be made to prevent the commissioning parents

being able to compel the birth mother to terminate the pregnancy or to have a

caesarean birth. Moreover, the surrogate mother should not be prevented from

suing the commissioning parents in the event that they were to decline to take

responsibility for the care of the commissioned child.

At the very least, legalisation of commercial surrogacy in Australia would

recognise reality and protect all parties. It also acknowledges the apparent gap

in our world view, namely that somehow women in developing countries can be

dealt with differently to women in Australia; that somehow their basic human

rights can be ignored.

Despite decriminalising the practice in Australia, ICS may still remain

popular because of its competitive prices and a lack of options for those denied

access to the surrogacy regime in Australia due to failed background checks.

This may result in women and children in other countries remaining vulnerable.

To combat this, Australia should enact a hard-line regime to deter ICS. Such a

regime may allow a shortlist of countries to be approved for ICS. The

shortlisted countries must meet a minimum standard of support and protection

for the parties, share the details of black-listed applicants, and be signatory to

relevant human rights conventions.

ICS engaged in countries not on the shortlist is to be considered unlawful

and the Government held responsible for enforcing laws to prevent the child

entering Australia. As Justice Hedley stated above; “The point of admission to

this country is in some ways the final opportunity in reality to prevent the

effective implementation of a commercial surrogacy agreement.”68

These recommendations are far from perfect, but such measures would

operate to protect vulnerable surrogate mothers and children and reduce the

68 X and Y (Foreign Surrogacy) [2008] EWHC 3030 at [24]; [2009] 1 F.L.R. 743

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commercial focus that has emerged in surrogacy arrangements. The focus

should return to protecting human dignity and the rights of all parties

concerned.

CONCLUSION

Government at all levels must be seen as having a responsibility to

protect the poor and vulnerable, especially women and children. Our moral and

legal obligations should not stop at the Customs barrier. How can we justify not

allowing commercial surrogacy in Australia but allow ‘open slather’ elsewhere,

knowing that there is a serious risk to the human rights of very vulnerable

women and children?

As we have recently seen in Thailand, there is also a risk to those

Australians wanting to be parents for all the best reasons who can be left in a

legal limbo with consequent distress and potential adverse legal, emotional, and

financial consequences.

A properly regulated commercial surrogacy regime in Australia would

avoid many of the major pitfalls which currently exist, and eliminate the

opportunities for unscrupulous middlemen, including lawyers, to exploit the

vulnerabilities of those desperate to be parents for legitimate reasons, surrogate

mothers, and the newly born.

A proper inquiry that enables all interested parties to be heard is to be

commended. This is not an area for half-hearted or incomplete responses – it

needs to be carefully considered and all sectors of the community given the

opportunity to participate. We may then be in a position to implement a

properly regulated legal regime for commercial surrogacy with appropriate

protection and a real recognition of the human rights of all involved.

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